Appeal from the Circuit Court of La Salle County; the Hon.
Fred P. Wagner, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Daniel R. Vallero, appeals from his convictions for driving under the influence of alcohol and driving while license revoked. We affirm.
During the pendency of this appeal, the defendant filed a separate petition for post-conviction relief in which he argued that his trial counsel labored under a conflict of interest. As a result of the petition, the defendant was granted a new trial. Based on the order for new trial, the State has filed a motion to dismiss this appeal. The defendant filed objections. The defendant has additionally filed a motion to withdraw issue II, counsel's conflict of interest, because it was previously resolved in the post-conviction hearing. These motions were taken with the case.
• 1 Because the issue of counsel's conflict has already been resolved, we allow the defendant's motion to withdraw issue II. Because the defendant's right to be free from double jeopardy is implicated in the remaining issue, we deny the State's motion to dismiss.
The facts in the instant case are not disputed. At approximately 3 a.m., on April 28, 1984, Oglesby police officer John Cummings observed a Cadillac lodged in a roadside ditch and containing one occupant, the driver. Cummings watched as the driver attempted to maneuver the car out of the ditch by driving the car forward and backward.
A station wagon was parked on the side of the road. The occupant of the station wagon hooked a chain from the wagon to the Cadillac and attempted to pull the Cadillac from the ditch. When this failed, the occupants of the station wagon drove away.
At this time, the defendant exited the Cadillac and walked toward Cummings' squad car. Cummings observed the defendant stagger as he walked. The defendant's speech was slurred and he smelled of alcohol.
Because Cummings was out of his jurisdiction, he radioed for assistance from the Illinois State Police. State Trooper Curtis Barnes responded to the call. He arrived on the scene at 3:55 a.m. Barnes observed that the Cadillac's engine was running and the driver was attempting to drive the car out of the ditch.
Barnes approached the driver of the Cadillac and requested identification. A computer check of the defendant's name revealed that the defendant's license had been revoked. Barnes arrested the defendant for driving while under the influence of alcohol and driving while license revoked.
The defendant was convicted of both offenses following a jury trial. The defendant appeals, arguing that he was not proved guilty of either offense beyond a reasonable doubt because the State failed to prove that the defendant had actual physical control of the "vehicle."
That the accused drove or was in actual physical control of a vehicle is an essential element of both driving under the influence (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)) and driving while license revoked (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 6-303(a)). Based upon the decision in People v. Johnson (1976), 43 Ill. App.3d 428, 356 N.E.2d 1373, the defendant asserts that his car was not a "vehicle" and that he, therefore, was not in control of a "vehicle."
The defendant clearly misconstrues Johnson. The automobile in Johnson ceased to be a "vehicle" because it was no longer operative, and not merely because it was immobile. The Johnson court noted that the auto was in a ditch only to demonstrate that the auto could not even be operated by coasting.
• 2, 3 Vehicle is defined as a "device, in, upon or by which any person or property is or may be transported or drawn." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 1-217.) "May" means to have the ability or competence. (Webster's Third New International Dictionary (1971).) The Cadillac's "capacity" to transport was not dissipated simply because it got stuck in the mud. Merely because a vehicle is temporarily disabled by weather, road conditions or "ditch conditions" under the circumstances of a particular factual setting does not convert an otherwise operable automobile into a "non-vehicle" for purposes of avoiding liability under the drunk driving laws of this State. Further, the defendant was clearly observed in control of a "vehicle" to the extent that the Cadillac could be operated in the ditch. In fact, ...